On November 11, 2013, Timothy Frazier allegedly slipped and fell in a fast food restaurant restroom owned and operated by Mita Enterprises, LLC (“Mita”).  Frazier v. Liberty Mut. Ins. Co., No. 2018-288-Appeal, 2020 WL 3117048, at *1 (R.I. June 12, 2020).  Three years later, in November 2016, Frazier filed suit against Mita to recover damages for his alleged injuries.  Id.  Mita, however, failed to respond to Mita’s complaint and Frazier filed a motion to default for Mita’s failure to respond to the complaint.  Id.  The Rhode Island Superior Court granted Frazier’s motion and default entered.  Id.  Subsequently, Mita filed a motion to vacate the entry of default and to dismiss the case for lack of sufficient service of process.  Id.  The first trial judge granted Mita’s motions and the case was dismissed on August 4, 2017.  Id.

Frazier later filed a new complaint against Mita in July 2017.  Id.  The process server, however, returned the summons non est inventus (“he is not found”), as Mita was not located.  Id.  Pursuant to Rule 21 of the Rhode Island Superior Court Rules of Civil Procedure, Frazier then moved to substitute Liberty Mutual, Mita’s insurance carrier, as a defendant.  Id.  Objecting to Frazier’s motion, Liberty Mutual argued, in part, that the statute of limitations barred Frazier’s claim.  Id.  Before addressing Liberty Mutual’s defense, however, Frazier renewed his motion to substitute and moved to amend his complaint.  Id.  The parties subsequently agreed that Frazier’s motion to substitute would be granted, but that Liberty Mutual reserved the right to assert any and all defenses, including the statute of limitations defense.  Id.  After Frazier amended his complaint on April 9, 2018, Liberty Mutual moved to dismiss it by arguing that the applicable statute of limitations barred Frazier’s claim.  Id. at *2.  In opposition to Liberty Mutual’s motion, Frazier relied on Rhode Island’s savings statute, arguing that Liberty Mutual was not a stranger to the first action against Mita, and thus, his claim was preserved for an additional year.  Id.  Rhode Island’s savings statute, R.I. Gen. Laws § 9-1-22, provides that:

If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, [the plaintiff] may commence a new action upon the same claim within one year after the termination.”  G.L. 1956 § 9-1-22.

The second trial justice disagreed with Frazier and granted Liberty Mutual’s motion reasoning that Frazier’s claim was not preserved by the savings statute and was barred by the applicable three-year statute of limitations.  Frazier, 2020 WL 3117048, at *2.  Frazier timely appealed.  Id.

On appeal, the Rhode Island Supreme Court held that the second trial judge erred in granting Liberty Mutual’s motion to dismiss because Mita and Liberty Mutual shared “a sufficient commonality of interest,” and, thus, Liberty Mutual was not a “stranger to the original action.”   Id. at *4 (quoting Luft v. Factory Mut. Liability
Continue Reading Rhode Island’s Supreme Court Makes Friends between Insured and Insurer “Strangers”

 MG+M Boston Attorneys Kevin Hadfield and Christos Koutrobis successfully obtained judgment on the pleadings for its client in Shepard v. AG Realty Investment, LLC, WWM-CV18-6014773-S, a personal injury case brought in the Connecticut Superior Court for the Judicial District of Putnam.

Plaintiff, a police officer, was attacked and bitten by a dog while executing a search warrant at an apartment building owned by MG+M’s client. In his complaint, Plaintiff stated that the dog was owned by a friend of the landowner’s tenant. Plaintiff claimed that the landowner should nevertheless be held liable because he was aware of, but did nothing to quell, significant alleged criminal activity on the premises. The alleged criminal activity resulted in Plaintiff’s need to be present on the property in his official capacity as well as the subsequent dog bite. Plaintiff asserted premises liability negligence claims in his complaint.

MG+M moved to strike the Plaintiff’s complaint for failure to state a claim. As grounds for its motion, MG+M argued that pursuant to the common law “firefighter’s rule,” a landowner owes no duty of care to a first responder that enters the premises within the scope of his official duties. In fact, the Connecticut Supreme Court has made clear that “under the firefighter’s rule, the landowner generally owes the firefighter or police officer injured on his property only the duty not to injure him willfully or wantonly . . . .” Levandovski v. Cone, 267 Conn. 653, 654 (2004) (internal citations and quotations omitted).

Plaintiff opposed MG+M’s motion, asserting that the claims were based on principles of “ordinary” negligence, rather than premises negligence, and were therefore excluded from the protections afforded by the firefighter’s rule. Plaintiff attempted to draw parallels between his case and Sepega v. DeLaura, 326 Conn. 788 (2017), in which the Connecticut Supreme Court permitted a case sounding in ordinary negligence to proceed against a landowner that actively barricaded himself into a house, forcing the officer to break the door down, resulting in injuries. The Superior Court rejected Plaintiff’s comparison, and held that the Sepega Defendant’s “active” negligence created an immediate hazard for the Plaintiff who had already entered the premises, which was distinguishable from the “passive” defective premises negligence allegations set forth in Plaintiff’s complaint.

In its memorandum of decision granting MG+M’s motion, the Court highlighted Plaintiff’s failure to allege that AG Realty had any knowledge of the presence of the dog that allegedly attacked the Plaintiff and also failed to assert factual allegations that would suggest willful or wanton misconduct on the part of the defendant. The Court struck plaintiff’s complaint and entered judgment on the stricken complaint in MG+M’s favor.

This common-sense application of the “firefighter’s rule” affirms the protections afforded to landowners from lawsuits by first responders, who may enter their premises at any time, from any direction, without invitation or warning, and without prior notice and opportunity to the landowner to remedy potential defects on the property. The rule prevents landowners from being held to an
Continue Reading MG+M Obtains Judgment for Landlord in Personal Injury Lawsuit Filed by Police Officer